The Nebraska Power Co.

In the Matter of THE NEBRASKA POWER COMPANY, OMAHA, NEBRASKA and INTERNATIONAL BROTHERHOOD of ELECTRICAL WORKERS, LOCAL No. 763, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C-1075.-Decided January 11, 1940 Electric Utility Industry-Iiiterference, Restraint, and Coercion.: remarks by assistant plant superintendent to individual employees in derogation of union; effect of remarks not overcome by respondent 's subsequent statement to union representatives that employees were free to join union and warning to foremen against repetition of such incidents in absence of direct communication to em- ployees ; remedy, cease and desist and posting of notices containing statement that employees are free to join any labor organization , including union-Com- pany-Dominated Union: charges of, dismissed-Disciimination-: charges of, dismissed. Mr. Arthur R. Donovan, for the Board. Kennedy, Rolland, DeLacy and Svoboda, by Messrs. Yale C. Hol- land, Ralph E. Svoboda, and L. T. Tierney, Omaha, Neb., for the respondent. Mr. Ray McGrath, of Omaha, Neb., for the Independent. Mr. James F. Sullivan and Mr. Robert K. Garrity, of Omaha, Neb., and Mr. James Preston, of Washington, D. C., for the I. B. E. W. Mr. Walter T. Nolte, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE . Upon charges and amended charges duly filed by John W. Griffith and Walter D. Dermyer, individuals, on their own behalf and by Inter- national Brotherhood of Electrical Workers, Local No. 763, herein called the I. B. E. W., the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri ), issued its complaint dated May 19, 1938, against the Nebraska Power Company, Omaha, Nebraska, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the 19 N. L. R. B., No. 41. 283030-41-vol. 19--24 357 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act. Copies of the complaint and an accompanying notice of hearing were duly served upon the respondent and the I. B. E. W. on May 19 and 20, 1938, respectively. The complaint, with respect to the unfair labor practices, alleged in substance that since May 1937 the respondent had dominated and interfered with the formation and administration of . and given financial and other support to the Independent Employees Association of the Nebraska Power Company, herein called the Independent; that on dates specifically alleged the respondent had discharged 3 named employees and had transferred 7 other named employees to less desir- able positions because such employees had joined or assisted the I. B. E. W. and in order to discourage membership in the I. B. E. W.; that the respondent had, since April 1937, through foremen and other em- ployees acting in its behalf,, made and caused to be made. statements derogatory to and discouranging membership in the I. B. E. W., questioned members about their affiliation with the I. B. E. W., col- lected or caused to be collected information concerning the I. B. E. W. and its members, and accused employees of being disloyal because of their membership in the I. B. E. W.; and that by each of the afore- mentioned acts and by other acts the respondent had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On May 24, 1938, the respondent filed a motion for a more specific statement in which more particularity was requested with respect to all allegations of the complaint relating to unfair labor practices, with the exception of those allegations relating to the discharge or demotion of the 10 named employees. In an answer filed on June 1, 1938, the respondent admitted certain facts with respect to the nature and extent of its business but denied that by reason of such business operations if was either engaged in or materially affected interstate commerce. In its answer the respondent further denied that it had engaged in the unfair labor practices as alleged. Thereafter, the respondent filed a protest, dated June 13, 1938, against proceeding to a hearing without an affirmative ruling on its motion for a more specific statement. Pursuant to an order of postponement issued by the Regional Director, copies of which were duly served upon the respondent and the I. B. E. W., a hearing was held at Omaha, Nebraska, from June, 16 to July 1, 1938, before Joseph L. Maguire, the Trial Examiner duly designated by the Board. The Board, the respondent, the I. B. E. W., and the Independent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-ex- amine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. . THE • NEBRASKA. POWER CONIPANT 359 . At the commencement of the hearing the Trial Examiner denied the respondent's motion for a more specific statement and granted a motion for leave to intervene filed by the Independent. At the hear- ing, the Trial Examiner ruled that the names of 8 of the 10 individuals alleged to have been discriminated against, within the meaning of Section 8 (3) of the Act, be withdrawn from the complaint on motion of counsel for the Board and with the, consent of the individual em- ployees involved and of the I. B. E. W. During the course of the hear- ing the Trial Examiner made numerous other rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On or about July 7, 1938, the Independent filed a written argument with the Trial Examiner, and on or about August 9, 1938, a supple- mental written argument that the Board had failed to establish thel allegations of the complaint to the effect that the Independent had been dominated and interfered with by the respondent. On Novem- ber 12, 1938, the respondent filed with the Board a brief and a supple- mental brief in which it urged that the evidence in the record failed to substantiate the material allegations of the complaint. On November 29, 1938, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties. The Trial. Examiner found that the respondent had engaged in -unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. He also found that the two remaining allegations of discrimination, within the meaning of Sec- tion 8 (3) of the Act, involving employees John W. Griffith and Walter D. Dermyer, were not substantiated by the evidence. He rec- ommended that the respondent cease and desist from its unfair labor practices and withdraw recognition from and disestablish the Inde- pendent as a collective bargaining agency. He also recommended that the allegations of the complaint with respect to discrimination by the respondent against employees John W. Griffith and Walter D. Dermyer be dismissed. On January 3, 1939, the respondent and the Independent 'filed ex- ceptions to the Intermediate Report and rulings of the Trial Examiner. On or about January 3, 1939, the respondent and the Independent re- quested art opportunity to file briefs and present oral argument before the Board in support of their exceptions. Both thereafter filed briefs. Pursuant to notice duly served upon all parties, a hearing was held before the Board in Washington, D. C., on June 16, 1939, for the purpose of oral argument. The respondent, the Independent, and the I. B. E. W. were represented and participated in the argument. The Board has considered the exceptions of the respondent and the Independent and the briefs and arguments in support thereof and, 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD except in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds them meritorious. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Nebraska Power Company, a corporation organized pursuant to the laws of the State of Maine and duly licensed to do business in the States of Nebraska and-Iowa, maintains its,.principal,office in,the city of Omaha, Nebraska. It engages as a public utility corporation in the generation of electric energy in the State of Nebraska and in the dis- tribution of such electric energy in the States of Nebraska and Iowa. All of the respondent's outstanding common stock is owned by the American Power and Light Company, a utility holding company, within the meaning of the Federal Public Utility Holding Company Act of 1935, 49 Stat. 803. Its preferred stock is held by the public. The respondent is the sole public utility operating in an area en- compassing 53 communities, including the city of Omaha, and covering 2,000 square miles inhabited by 290,000 people within the State of Nebraska and encompassing 15 communities, including the city of Council Bluffs, and covering an area of 500 square miles inhabited by 61,000 people within the State of Iowa. To serve its customers in the State of Iowa the respondent owns and operates an electric dis- tribution line commencing at its generating plant in the State of Ne- braska and crossing the Missouri River into Iowa and there connecting with facilities owned and operated by the respondent for serving communities and individual customers within the State of Iowa. In addition to the electric energy which the respondent distributes to its own customers within the States of Nebraska and Iowa, it delivers energy at points within the State of Nebraska and within the State of Iowa to the Iowa-Nebraska Light and Power Company, such energy being subsequently sold and.delivered by the Iowa-Nebraska Light and Power Company to its customers in the States 'of Iowa and Ne- braska by means of facilities owned by it in and between the two States. During the year 1937, the respondent's total output of electric energy was 397,000,000 kilowatt hours of which 23,735,000 kilowatt hours was delivered to the Iowa-Nebraska Light and Power Company. Included among the respondent's customers are the following rail- roads : the Union Pacific ; the Chicago, Burlington, and Quincy ; the' Chicago, Rock Island and Pacific; the Illinois Central; the Chicago and Northwestern; and the Chicago, St. Paul, Minneapolis, and Omaha. In 1937 the energy supplied to these railroads. within Ne- braska totaled 6,384,734 kilowatt hours, within Iowa 1,804,035 kilo- THE NEBRASKA POWER COMPANY 361 watt hours. The Omaha and Council Bluffs Street Railway, operat- ing in and between the cities of Omaha and Council Bluffs, is de- pendent upon the respondent for its supply of electric energy. Also numbered among the respondent's customers are numerous other, or- ganizations engaged in interstate commerce including Western Union Telegraph Company; Postal Telegraph and Cable Company; North- western Bell Telephone Company; Omaha Municipal Airport, a terminal for interstate airlines; Pacific Fruit and Express Company, operator of refrigerated railway cars; the Omaha World Herald, a daily newspaper with an interstate circulation ; the Omaha Grain Ex- change, which renders grain exchange quotations available throughout the country ; and several packing houses and grain elevators. The respondent also supplies. electric energy to the Federal Government for the operation of its post offices within the area served by the re- spondent. Each of the customers named above uses the electric energy supplied by the respondent for lighting and powering facilities oper= ated in Nebraska and Iowa in connection with their interstate activities. As an adjunct to its business of distributing electric energy, the, respondent engages in the sale of electric appliances at retail. Such merchandise sales totaled $329,235 in 1937, $267,913 in Nebraska and $61,322 in Iowa. In 1937 the respondent purchased equipment and supplies, exclusive of expenditures for additions to its generating equipment under special construction contracts, valued at $1,545,000. Purchases made outside of the State of Nebraska accounted for $680,000 of this amount. Purchases made within the State of Nebraska totaled $447,000. The remaining $418,000 was paid to dealers located within the State of Nebraska for coal obtained by them for the respondent f. o. b. mines located principally within the State of Kansas. Ninety per cent of all supplies and equipment purchased by the respondent originate out- side of the State of Nebraska, whether the purchase is made outside of the State or through dealers located within the State. The re- spondent was required to pay, in addition to the amount listed above for purchase of supplies and equipment, $610,000 in freight charges for the transportation of its coal supply. Such freight charges were paid by the respondent directly to the following interstate railroads : the Union Pacific; the Chicago, Burlington, and Quincy; the Chicago and Great Western; the Wabash; and the Missouri Pacific, and accrued by reason of the transportation of coal principally from Kansas. Further evidence of the interstate nature of the respondent's opera- tions is to be found in its handling of revenues. All such revenues, from whatever source derived, are eventually accumulated in accounts maintained by the respondent in Omaha, Nebraska. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED International Brotherhood of Electrical Workers, Local No. 763, is a labor organization chartered by International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, admitting to its membership all employees of the respondent, excluding administrative, clerical, and supervisory employees. . Independent Employees Association of the Nebraska Power Com- pany is an unaffiliated labor organization, admitting to its member- ship all employees of the respondent, excluding officers and officials. III.. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion On June 22, 1918, the I. B. E. W. was granted a charter conferring upon it jurisdiction over linemen in the territory of the respondent. In the period intervening between that date and the early months of 1937, the I. B. E. W. continuously maintained a membership among tho respondent's employees.' Because of the limits of the I. B. E. W.'s jurisdiction this membership was confined to employees of a single department known as the distribution department. During the late winter of 1937 the I. B. E. W. members decided that it would be to their advantage to expand their membership into other departments of the respondent's organization, and they accordingly sought from their international organization an amendment to their charter; ex- panding their jurisdiction. A grant of additional jurisdiction was received ' in March of 1937 and the I. B. E. W. immediately began a campaign of organization. Many non-member employees were so- licited to attend an open meeting of the, I. B. E. W. at the Labor Temple in Omaha on the night of Sunday, March 21, 1937. Several new members were obtained at this meeting and as a result of con- tinued campaigning through April and May the membership of the I. B. E. W. was increased by approximately 100 members to a total of approximately 170. Employees then eligible for membership in the I. B. E. W. numbered 500 or 600. Two men employed at the generating plant, Woods and Hurd, testi- fied that within a week after they had attended the I. B. E. W. meet- ing of March 21,1937, they were approached on the subject by Turner, assistant superintendent of the generating plant. According to Woods, Turner told him that it had been reported that he was talking union. Turner then spoke disparagingly of the men who attended the meeting at the Labor Temple and accused Woods of not having_ a mind of his own. Woods quoted Turner as concluding the con- versation by saying, "If you ain't satisfied, get out and get out right now." THE. NEBRASKA POWER C'O'MPANY 363 Hurd's account of his conversation with Turner is to the effect that Turner asked him what he knew about the union, whether he had at- tended the recent union meeting, and, upon receiving an affirmative answer to the latter question, what reason he had for going up there. Hurd said that Turner then accused him of being an "unloyal" em- ployee and wanted to know what he "had up [his] craw." Turner also remarked that he had heard that some of the boys were saying that if they joined the union they would get $200 a month and con- cluded by saying that if anyone thought he could get $200 a month anywhere else he could have time off to do it. Turner denied that the union had been mentioned in either of the, conversations. He admitted, however, that he was excited during these conversations, that during the conversation with Woods he was in fact "hot under the collar," and that as a result he may have made statements which he could not later recall. Turner and other wit- nesses for the respondent testified that strike rumors had been cir- culated in the plant for some time previous to the conversations, that similar rumors had come to the attention of the management from out- side sources, and that as a result Turner had been instructed to track down the rumors inside the plant. According to Turner, both of thel conversations were confined to the question of the strike rumors. Turner testified that Woods flared up when asked what he knew about the rumors that someone was going to pull the switches and that- in the course of a heated exchange of words which followed Turner told Woods that he did not know enough about the plant to pull the switches and that he could be replaced by a farmer boy in 2 weeks. With respect to his conversation with Hurd, Turner denied having mentioned the union or having made any accusation of disloyalty but admitted the substance of Hurd's testimony with respect to the $200 a month. On April' 5, 1937, Mike Boyle, an international representative of the I. B. E. W., came to Omaha at the request of the members of the local and held a conference with Davidson, president of the respond- ent. Boyle's visit was calculated to bolster the campaign of organi- zation and to serve as an opening wedge in negotiations with the re- spondent. During the course of his conference with Davidson, Boyle presented several grievances arising out of recent discharges and transfers of I. B. E. W. members, outlined the I. B. E. W.'s position as contemplating an eventual closed shop, represented that there was such unrest current among the respondent's employees as to give rise, in his opinion, to the possibility of a strike, and stated that reports from the I. B. E. W. membership indicated that statements derogatory to the union and its members had very recently been made by a fore- man in the respondent's employ. Boyle made one specific proposal, namely that, in. order to overcome the effect of the derogatory remarks 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to which he had referred, the respondent should post notices through- out its organization to the effect that it had no objection to its em- ployees joining the I. B. E. W. Although the respondent refused to accede to Boyle's proposal in so far as it involved the posting of notices, he was told that the respondent had no objection to its em- ployees joining the I. B. E. W. and was assured that, if any remarks derogatory to the union or its members had been made, such remarks did not reflect the policy of the respondent and that orders would issue to supervisors and foremen to avoid such practices in the future. Davidson stated to Boyle that the respondent had always allowed its employees full freedom in joining labor organizations and that they could be informed that like freedom would be accorded them in the future. Boyle gave a full report of the conference to a sub- sequent meeting of the members of the I. B. E. W., including the re- spondent's statement that it had no objection to employees joining the I. B. E. W. Shortly thereafter, Nelson, president of the Omaha Cen- tral Labor Union, acting for Boyle, had a conference with Fay Smith, vice president of the respondent, and renewed the request for the post- ing of notices. He received a reply essentially the same as that given to Boyle and he too reported to the members of the I. B. E. W. In the meantime, the respondent cautioned its supervisors and fore- men as it had promised Boyle it would do. Turner was told indi- vidually that in the future he should studiously avoid making any re- marks to employees concerning the I. B. E. W. and a similar admon- ition was given to a group of supervisors and foremen called together especially for that purpose. Turner testified that he was told that Boyle had referred specifically to his conversation with Woods and was warned against a repetition of that incident. With respect to the meeting of supervisors and foremen, Turner testified as follows : Mr. Ruf, Mr. Urquhart and myself were all called up to the office to the directors' room where Mr. Smith had another meet- ing. I took it that that meeting up there, from what was said, was again for my benefit. There were about 15 men around the table, I guess. Turner's denial that the union was mentioned in his conversations with Woods and Hurd and his assertion that both conversations were limited to the subject of the strike rumors are unconvincing in view of his admission that in excitement and in anger he may have made state- ments which he could not later recall. Furthermore, it is highly im- probable that strike rumors circulating during the course of a vigor- ous campaign of organization by the I. B. E. W. would be so completely dissociated from the I. B. E. W. and its activities as the testimony of Turner would indicate. We accept, therefore, the testimony of THE NEBRASKA POWER COMPANY 365 Woods and Hurd, indicating that Turner made statements to them which were derogatory to the I. B. E. W. and its members. We find that the respondent, through the remarks of Turner to the employees Woods and Hurd in derogation of the I. B. E. W. and its members, has interfered with, restrained, and coerced its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- poses of collective bargaining and other mutual aid and protection, within the meaning of Section 7 of the Act. The respondent does not question its responsibility for Turner's statements. It contends, however, that it has since overcome any in- fluence that such statements might have had upon the employees by admonishing Turner and other supervisors and foremen, against. any recurrence of such incidents and by voicing to Boyle and Nelson its policy of non-opposition to membership of employees in the I. B. E. W., a policy which it claims it has since practiced and reaffirmed on sev- eral occasions, including the hearing in the instant proceeding. Never- theless, we do not believe that the effect of the statements has been sufficiently overcome. While we find no occasion for holding that under the circumstances the respondent was under an obligation to comply with the I. B. E. W.'s request that it post notices to the effect that it had no objection to its employees joining .the I. B. E. W., we are impressed by the fact that it never directly informed its employees that Turner's statements were contrary to its policy. We are of .the opinion that more remains to be done if the effect of the statements is to be overcome. B. The alleged domination of and interference with the formation and administration of the Independent The I. B. E. W.'s campaign of organization served to emphasize in the minds of the respondent's employees the question of representation and the problem of choosing a representative. Discussions on the subject were widely held among them during March, April, and May of 1937. Early in May, two employees, Smith and Larsen, the former a chief substation operator and the latter a clerical employee, met in the re- spondent's general office building and fell into a conversation concern- ing unions. Both men desired to prevent the I. B. E. W. from be- coming the exclusive representative of the employees and held the opinion that the formation of an independent organization with mem- bership limited to employees of the respondent would be the most effective means to that end. Accordingly, they decided to consult a lawyer with respect to the formation of such an organization. For 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their counsel they chose Ray McGrath, a local attorney. known to them by general reputation. He advised them that their plan was feasible from a. legal standpoint but that no action should be taken until their proposal had been considered by a representative group of employees. It was agreed that Smith and Larsen should invite such a group to meet in McGrath's office on May 11 at 4:30 p. in. In contacting em- ployees for this meeting, Smith and Larsen made free use of company telephones during working hours. This is, however, a fact without particular significance, since the record establishes that the respondent as a general practice allows its employees free use of telephones without restriction or limitation. A group of 26 employees assembled in McGrath's office between 4:30 and 5 p. in. on May 11? McGrath made a prefatory statement in which he outlined the purposes of the meeting and the circumstances under which it had been called. A general discussion followed, during the course of which one of the men expressed himself as hesitant to proceed in forming a union in the absence of knowledge of the re- spondent's attitude. Thereupon, the group decided to call in a rep- resentative of the respondent for a statement of its position. McGrath telephoned Davidson and received an affirmative reply to his invita- tion. Davidson appeared shortly, whereupon McGrath reviewed the situation for him and cautioned him against any expression of ap- proval. Davidson then made a brief statement in which he referred to the pertinent provisions of the Act as he understood them and concluded by indicating that the respondent could not and, in any event, would not object. The statement was carefully worded and did not indicate, a preference for the proposed organization over any other. Davidson left the meeting immediately after the conclusion of his statement. Thereafter, the group of employees decided to proceed with the forma- tion of a labor organization and constituted themselves a committee for that purpose. After completing certain preliminary steps, they adjourned until May 14, to prepare for formal organization. The employees who attended the meeting of May 14 were, with but few exceptions, the same as those who had attended the meeting of May 11. They approved and adopted a constitution and bylaws; constituted themselves as the charter members of the Independent; authorized its incorporation as a non-stock, non-profit corporation; chose from among their number a board of directors of 11 members, consisting of three representatives from the distribution department, three from the office, and three from 'the plant department and one each from the rural and Iowa divisions of the respondent's organ- ization; and prepared to solicit members. 'Although several of the employees left their work early to attend the meeting, as was customary, none of them informed their superiors of the purpose for which they were leaving. THE. _NEBRASKA POWER C02AIPANY 367 There is some indication in the record that certain of the individuals who were active in the organization and administration of the Inde- pendent held positions with the respondent above the rank of ordinary employees; but in an absence of evidence as to the nature of their duties we are unable to determine that they were supervisory em- ployees. It appears that several employees within this category were present at the organization of the Independent, served on the first and second boards of directors, and solicited members and collected clues for the Independent on the respondent's property during work- ing hours. There is, however, no evidence that the membership solicit- ing and dues collecting activities of any employees were observed by their superiors, except that in two isolated instances the respondent admitted that it had learned of activity on behalf of the Independent during working hours. In each of these instances the employee{ involved was reprimanded for his activities. The Independent more closely resembles a business corporation thani, a• labor organization. The powers of management and policy deter- mination are vested almost exclusively in the board of directors. The only regular membership meeting provided for in the constitution and bylaws is an annual meeting. This organizational structure has had its effect upon the operations of the Independent. Membership meetings have been rare and the board of directors has exercised almost unlimited power in the conduct of the affairs of the organiza- tion. The degree of control exercised by the board of directors is ex- emplified in the procedure they adopted for the choice of their own successors. The director or directors from each department or divi- sion chose a nominating committee. The nominating committee then chose two candidates for each directorship allotted to the department or division. Ballots were prepared on the basis of such nominations and elections were conducted without calling a meeting of the mem- bers of the organization. The extent of their control is further ex- emplified in the Independent's grievance procedure and collective bargaining activities. Individual grievances are passed upon by the board of directors and then referred to one member for informal presentation to the respondent. Two proposals for collective bargain- ing have been advanced, both of which emanated from the board of directors without consideration by the membership. It is not surpris- ing, therefore, that the record discloses that on a number of occasions members voiced protests against being denied participation in the affairs of the organization. . The respondent has avoided entering into negotiations with the, Independent concerning either of its collective bargaining proposals. One, involving a request for.the adoption of a liberalized vacation schedule, was apparently abandoned on May 19, 1938, when Davidson wrote to the president of the Independent pointing out that business 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conditions prohibited compliance with the organization's request.. The second proposal contemplated exclusive recognition and negotia- tion of a contract. In reply to this proposal Davidson stated that the ' opening of negotiations at the time was impracticable. He promised, however, to reopen the matter at the earliest possible moment. The officers of the Independent accepted this postponement and did not later urge a reopening of the question. Testifying in this connection, Smith, first president of the Independent, stated that the Independent was not seriously interested in exclusive recognition or a contract with the respondent, but merely wished to enter a claim in advance of any other labor organization. On the basis of the facts outlined above and on the entire record we are of the opinion that the respondent did not dominate or inter- fere with the formation or administration of the Independent. In his appearance at the organization meeting and his statement to the employees present on that occasion, Davidson did not violate the letter of the Act. If he violated the.spirit of the Act, such violation is m l- possible of ascertainment from this record. Although the record indi- cates that certain of the employees who were active on behalf of the Independent were above the rank of ordinary employees, it does not, as we have said, contain sufficient evidence as to the nature of their duties to permit of a determination that they were supervisory em- ployees. While the facts with respect to the structure, administra- tion, and bargaining activities of the Independent might suggest doubt as to whether or not it is an entirely satisfactory representative from the standpoint of the employees, they do not establish that the respondent has dominated or interfered with its formation or administration. We find that the respondent has not dominated or interfered with the formation or administration of the Independent and that it has not contributed support to that organization, within the meaning of Section 8 (2) of the Act. We will, accordingly, dismiss the allegations of the complaint in this respect. C. The alleged discriminatory discharges John W. Griffith worked for the respondent as.a lineman for ap- proximately 13 years prior to March 25, 1937. Griffith and most of his fellow linemen had been members of the I. B. E. W. for several years. By reason of the fact that Griffith is by nature a vociferous and an en- thusiastic individual, his affiliation with and active support of the union were undoubtedy widely known. The record does not establish, however, that he was an outstanding protagonist of the union. Furthermore, there is no indication that the respondent had ever objected to Griffith's union membership or activity. THE NEBRASKA POWER CIOMPAN'Y 369 The respondent conteiids'•-that.:.Griffith was discharged for violation of rules relating to the use of rubber insulating devices by linemen. In recent years the use of such equipment has become an accepted practice in the utility industry and the respondent has engaged ac- tively in safety campaigns which in part at least emphasized the use of safety devices. The respondent's rules and regulations governing employees, issued in printed booklet form, are detailed and specific with respect to the use of rubber protective equipment and indicate that discipline or discharge may result from failure to observe the rules and regulations. There is, however, no indication from the record that a discharge had ever resulted from the infringement of these rules in any case prior to Griffith's discharge. Moreover, it ap- pears affirmatively in the record that on occasions, during emergency work or in the course of rush work during storms, the rules had been winked at by foremen and even violated upon their instructions. Re- laxing of the rules was an infrequent rather than a usual practice, however. The circumstances surrounding Griffith's discharge are as follows: The morning of the day of the discharge was chilly and damp and marked by intermittent flurries of snow and the crew to which he was attached was assigned to work on lines leading to a hospital. In view of this situation, the crew. foreman, on orders from the general fore- man, warned the linemen as they left the truck to begin work to use plenty of rubber protective equipment. In spite of this warning Griffith used no insulation whatsoever on the first pole on which he worked that day. This action on his part elicited a word of caution from a fellow employee and a reprimand from the foreman. From that time until approximately 4 o'clock in the afternoon Griffith used the prescribed protective devices in his work. At that time, however, he was observed by both, the general' foreman and the crew foreman working on a pole with what they termed considerably less than the required amount of protective equipment. Griffith did not himself contend that on this occasion he was using all of the equipment re- quired by the rules and regulations but he insisted that in his judgment he was adequately protected. In any event, it appears that when a fellow employee climbed the pole to assist Griffith he found the amount of insulating rubber insufficient and, when more protective equipment was sent up from the ground at his request, it was used by both men. Griffith was not reprimanded on the spot for this failure but was called before the general foreman and his crew foreman immediately upon his return to the respondent's headquarters that evening, given an opportunity to explain his conduct, and thereafter discharged, effective at once. Fellow employees and fellow union members testified that Griffith's laxness with respect to insulating equipment had always been more 370 DECISIONS OF NATIONAL I:ABOR- REbATIONS BOARD flagrant than that of other linemen. Their testimony shows that he had often been reminded of the rules and regulations or reprimanded for a failure to live up to them. In addition, fellow employees were prompted in self-defense to caution him from time, to time. We are of the opinion that the evidence supports the respondent's contention that infringement of its safety rules and regulations was the sole operative cause of Griffith's discharge. We find, therefore, that the respondent has not discriminated against John W. Griffith with respect to his hire and tenure of employment, thereby discourag- ing membership in the I. B. E. W., and we will dismiss the allegations of the complaint in this respect. Walter D. Dermyer worked for the respondent as a wireman's helper from July 7, 1930, to May 31, 1931, and as a wiremaai on maintenance and construction - work in the substation department 'from June 25, 1935; to March 27; 1937. " He joined the I. B. E. W. on Sunday, March 21, 1937, and during the early part of that same week was notified. of his discharge, effective Saturday, March 27. Dermyer testified that in so far as he knew his membership in the I. B. E. W. had not•come to the attention of the respondent prior to the time when he was notified of his discharge. It is clear from the record that Miller, the foreman who recommended Dermyer's dis- charge, had no such knowledge. Shortly after he was notified of his discharge, Dermyer met Miller in the course of his work and the two discussed the matter of the discharge at Dermyer's request. On this occasion Dermyer told Miller that he had joined the I. B. E. W. on the previous Sunday and asked whether his membership had been the cause of his discharge.. Miller replied that Dermyer's affiliation with the I. B. E. W. had not entered into the matter and that he had in fact not known of such.affiliation prior to Dermyer's own statement. Dermyer also asked Miller why Keller, an employee who had been hired 2 or 3 weeks after Dermyer in 1935, was being retained. Miller replied that, in his opinion, Keller would be the best man to keep. Miller testified that his judgment in this connection was based upon the fact that Keller had had technical college training in electrical en- gineering and upon his observations as to the relative abilities of the two men. The respondent also established that, at the time of Dermyer's dis- charge, construction work, in which he had been chiefly engaged, was at an end. Six employees were affected by this situation; three were transferred to another department, two were transferred within the substation department, and Dermyer alone was discharged. Follow- ing this adjustment of personnel, however, there remained in the department several members of the I. B. E. W. On a number of occasions following his discharge, Dermyer ap- plied to the respondent for further employment.. He was told on each 11 THE N EHR,ASKA POWER COMPANY 371 occasion that there was nothing available. In, the course of his testi- mony Dermyer pointed to the fact that, although he was repeatedly denied employment, two. new men, Griffen and Cowell, were put to Work in the substation department within a few months after his dis- charge as substation operators. The respondent admitted that Der- myer could have filled the position filled by either one. of these men. It established, however, that Griffen was a college graduate in electrical engineering who was hired by the engineering department and then placed on temporary assignments in various departments of the or- ganization in order that he might have a broad experience. Cowell was hired in May 1937 at $90.00 a month as a relief operator on a tem- porary basis for the purpose of substituting for regular operators on vacation. Dermyer was considered, according to the respondent, at the time Cowell was hired but he was not offered the position because of the low salary 2 and temporary nature of the work. Cowell was still on the pay roll at the time of the hearing in this proceeding, more than a year after his employment, and had received an increase in salary of $10 a month. His* salary was, however,. still substantially less than that paid to Dermyer and the respondent insisted that his employment was still on a temporary basis. The circumstances sur- rounding the employment of Griffen and Cowell, subsequent to the discharge of Dermyer, afford no basis for a conclusion that the hiring of either one or both of these men constituted a discrimination against Dermyer influenced by his I. B. E. W. membership, even though it appears that when Cowell was hired scant consideration was given to Dermyer. Upon all of the evidence, we are of the opinion that the allegations of the complaint with respect to discrimination involved in the dis- charge of Dermyer have not been sustained. We find, therefore, that the respondent did not discriminate against Walter D. Dermyer in regard to his hire and tenure of employment, thereby discouraging membership in the I. B. E. W., and we will dismiss the allegations of the complaint in this respect. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, A, above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Derm3•er was receiving $140.00 a month when discharged 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the respondent, through the statements of its assistant generating plant superintendent, Turner, in derogation of the I. B. E. W. and its members, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, we shall order the respondent to cease and desist from such interference, restraint, and coercion. Following our usual practice we shall also order the respondent to post notices throughout its plant, stating that it will cease and desist in the manner provided in the preceding paragraph. Since we have found that the ameliorative measures taken by the respondent sub- sequent to its discovery of the statements made by Turner, did not adequately,overcome.the.effect.of those statements, we shall include in our order requiring the posting of notices a requirement that such notices contain a statement to the effect that, in so far as the respondent is concerned, its employees are free to form, join, or assist any labor organization, including the I. B. E. W., according to their own indi- vidual preferences and to bargain collectively with the respondent through representatives of their own choosing. Such a statement is in accord with the avowed policy of the respondent. We are'of the opinion that the purposes of the Act will best be effectuated if that policy is communicated directly to the employees by means of an official communication from the respondent. Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, Local No. 763, and Independent Employees Association of the Nebraska Power Com- pany are labor organizations,, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not dominated and interfered with the forma- tion or administration of, or contributed financial or other support to, Independent Employees Association of the Nebraska Power Company, within the meaning of Section 8 (2) of the Act. 5. The respondent has not discriminated in regard to the hire or tenure of employment or any term or condition of employment of Joloi THE Iv RE-RAS'IZA POWER COMPANY 373 W. Griffith or Walter D. Dermyer in such manner as to encourage or discourage membership in a labor organization, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Nebraska Power Company, Omaha, Nebraska, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from in any manner interfering with, restraining; or coercing its employees in the exercise of the right to self-organiza- tion, to form, join, or. assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the; National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Immediately post notices to its employees in conspicuous places throughout its offices, generating plants, substations, warehouses, garages, or other buildings or places where employees work or- report for work and maintain such notices fora period of at least sixty (60) consecutive days from the date of posting, stating that it will cease; .and desist as aforesaid and that, in so far as the respondent is con- cerned, its employees are free to form, join, or assist any labor organi- zation, including the I. B. E. W., according to their own individual preferences and to bargain collectively with the respondent through representatives of their own choosing; (b) Notify the Regional Director for the Seventeenth Region (Kansas City, Missouri ) in writing within ten (10) days from the date of this Order what steps it has taken to comply therewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed in so far as it alleges that the respondent dominated or inter- fered with the formation or administration of, or contributed financial or other support to, Independent Employees Association of the Ne- braska Power Company , within the meaning of Section 8 (2) of they Act, and that the respondent discriminated in regard to the hire or tenure of employment or any term or condition of employment of John W. Griffith and Walter D. Dermyer in such manner as to en- courage or discourage membership in a labor organization , within the meaning of Section 8 (3) of the Act. 283020-41-vol . 10--25